PANACEA BIOTEC LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) In this appeal the correctness of the impugned order -in -original, dated 30 -9 -2003 has been contested by the appellants vide which the Commissioner of Customs has denied them benefit of Notification 16/2000 -Cus., dated 1 -3 -2000.

(2.) The learned Counsel has contended that the benefit of the above said Notification in respect of the machinery (Fermentor) imported by the appellants had been wrongly denied on the ground that it did not produce any commodity which could be traded/ bought and sold. The wording of the Notification has been misinterpreted by the adjudicating authority. Therefore, the impugned order deserves to be set aside. On the other hand, the learned SDR has contended that the machinery imported by the appellants (Fermentor) did not produce any commodity which could be marketed as such. Therefore, the benefit of the Notification in question has been rightly denied to the appellants in respect thereof.

(3.) We have heard both the sides and in our view the contention raised by the learned Counsel deserves to be accepted. From the record, we find that the appellants had imported machinery known as 'Fermentor' from Germany. The dispute initially arose about the classification of the same, as the appellants sought classification under CTH 8419.89, while the Department wanted to classify the same under CTH 8479.89. The dispute was resolved ultimately by the Tribunal in an appeal filed by the appellants against the order of the adjudicating authority who refused to accept the classification as profounded by them, by holding the classification under sub -heading 8479.89 of the CT vide Final Order dated 8 -11 -2002. The Tribunal, however, remanded the matter to the adjudicating authority for considering the eligibility of the machine Fermentor, to the benefit of Notification 16/2000 -Cus. which provided duty at standard rate of 25% in respect of machinery for production of commodities falling under sub -heading 8479.50 or 8479.89. The adjudicating authority has denied the benefit of this Notification on the ground that the machine Fermentor imported by the appellants did not produce any commodity which could be bought and sold in the market as such as it produced vaccine in a crude form which required further purification and bottling for marketing purposes. But we are unable to subscribe to this view of the adjudicating authority. The bare perusal of the Notification reveals that it covers machinery for production of commodities classifiable under subheading 8479.50/8479.89. No such condition regarding the marketability of the commodities as such produced by such machinery, had been prescribed therein. Therefore, any machinery meant for production of commodities and classifiable under the above said sub -headings of the CTH, shall stand covered by this Notification. The machine Fermentor imported by the appellants is for the production of vaccine which is a commodity. Therefore, the fact that the vaccine produced by this machine is in crude form which requires purification and bottling for the purpose of marketing, is immaterial and cannot be made basis for disallowing the benefit of the above said Notification to the appellants for want of any such condition laid down therein to the appellants. Therefore, in our view, the benefit of the Notification has been wrongly denied to the appellants. The machine imported by them is meant for production of vaccine which itself is a commodity. Consequently, the impugned order cannot be sustained and is set aside.